Criminal Procedure Commons^™

The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

Modes Of Discretion In The Criminal Justice System, Roger Fairfax

Presentations

No abstract provided.

Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich

All Faculty Scholarship

At a recent meeting of the National Association of Sentencing Commissions, Yale professor Dan Freed was honored during a panel discussion titled "Standing on the Shoulders of Sentencing Giants," Dan Freed is indeed a sentencing giant. but he is the gentlest giant of all. It is hard to imagine that a man as mild-mannered, soft-spoken, and self-effacing as Dan Freed has had such a profound impact on federal sentencing law and so many other areas of criminal justice policy, Yet he has.

I've been in many rooms with Dan Freed over the years — classrooms, boardrooms, dining rooms, and others. …

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Teaching Whren To White Kids, M. K.B. Darmer

Michigan Journal of Race and Law

This Article addresses issues at the intersection of United States v. Whren and Grutter v. Bollinger at a time when the reality of racial profiling was recently illustrated by the high-profile arrest of a prominent Harvard professor. Given the highly racialized nature of criminal procedure, there is a surprising dearth of writing about the unique problems of teaching issues such as racial profiling in racially homogeneous classrooms. Because African American and other minority students often experience the criminal justice system in radically different ways than do Whites, the lack of minority voices poses a significant barrier to effectively teaching criminal …

In Defense Of Victim Impact Statements, Paul Cassell

Utah Law Faculty Scholarship

This paper provides a comprehensive justification of "victim impact statements" in criminal sentencing, explaining how such statements are important to crime victims and how the critics of such statements fail to grapple with the need for these statements to victims.

A Fair Trial, Not A Perfect One: The Early Twentieth-Century Campaign For The Harmless Error Rule, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

From just after the turn of the twentieth century through World War II, there was a great deal of activity around criminal justice reform. Much like today, many commentators in the early twentieth century considered the American criminal justice system to be broken. With regard to all of its phases-substance, sentencing, and procedure-the criminal justice system was thought to be inefficient and ineffective, and it failed to inspire the confidence of the bench, bar, or public.

Against this backdrop, a group of reformers sought to address the shortcomings of early twentieth-century criminal justice-during what I consider the "Golden Age" of …

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph

Faculty Scholarship

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid …

Integrating Comparative Criminal Law: Criminal Law And Procedure, At Home And Abroad, Roger Fairfax

Presentations

No abstract provided.

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?

Forensic Science, Wrongful Convictions, And American Prosecutor Discretion, Dennis J. Stevens

Criminal Justice Faculty Publications

A hot controversy exists about the reliability of forensic science as reported by prime-time drama television series in bringing violent criminals to justice. This exploratory research will show that neither forensics or its fictionalised (CSI Effect) accounts, nor substantial evidence secured by police investigators, shape prosecutor decisions to charge a suspect with a crime, which can often result in freeing guilty suspects and convicting innocent individuals. In the summer of 2006, 444 American prosecutors responded to a survey. The findings reveal that judges, juries, and defence lawyers are influenced more by prime-time American drama forensic accounts than by the substantial …

Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel

Faculty Scholarship

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …

Punishing Family Status, Jennifer M. Collins, Ethan J. Leib

Faculty Journal Articles and Book Chapters

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …

Life And Death Decisions: Prosecutorial Discretion And Capital Punishment In Missouri, Katherine Y. Barnes, David L. Sloss, Stephen C. Thaman

All Faculty Scholarship

This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser …

Legitmacy And Criminal Justice, Jeffrey A. Fagan

Faculty Scholarship

Surveys of public opinion over four decades consistently show that Americans have little confidence in the fairness or effectiveness of the criminal justice system and criminal law more generally. This crisis of confidence is most acute among racial minorities: surveys show that more than one in three Whites have little confidence in the police, compared to more than half of Black respondents. Both the lack of confidence and the racial breach in perceptions of the law and legal actors have persisted for nearly four decades, regardless of whether crime was rising or falling.

But we might reasonably ask whether and …

The Meaning Of Life (Or Limb): An Originalist Proposal For Double Jeopardy Reform, Justin W. Curtin

University of Richmond Law Review

No abstract provided.

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Ethan J. Leib

Faculty Scholarship

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

A Reader's Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir On Economic Modeling, Selective Incapacitation, Governmentality, And Race, Bernard E. Harcourt

Faculty Scholarship

From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review essays of "Against Prediction" by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist and critical race theory to the intricate details …

Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar

Articles

Forty years ago the kindling of segregation, racism, and poverty burst into the flame of urban rioting in Detroit, Los Angeles, Newark, and other U.S. cities. The following essay is excerpted from a report by Professor Emeritus Yale Kamisar filed with the National Advisory Commission on Civil Disorders (the Kerner Commission) regarding the disorders that took place in Detroit July 23-28, 1967. The report provided significant material and was the subject of one article in the series of pieces on the anniversary of the disturbances that appeared last summer in The Michigan Citizen of Detroit. Immediately after the disturbances ended, …

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Jennifer M. Collins, Ethan J. Leib

Faculty Journal Articles and Book Chapters

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control, Ahmed A. White

Publications

No abstract provided.

A Tribute To Professor Charles J. Ogletree, Jr., Roger Fairfax

Scholarly Articles in Law Reviews & Journals

I recall vividly how, as a junior at Harvard College, I landed a coveted position on Professor Ogletree's office hours list. My ostensible purpose for taking an office hours slot away from a deserving law school student was to discuss the college seminar paper I was writing on the District of Columbia statehood movement. Although I did leave that meeting with several fruitful research leads, I was much more satisfied with achieving my true aim-to meet in person this man about whom I had heard so many wonderful things. The professor did not disappoint. As I sat in his office-the …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

A Brave New World Of Criminal Justice: Neil Gerlach's Genetic Imaginary, Steve Coughlan

Articles, Book Chapters, & Popular Press

In this well written and intriguing book, Neil Gerlach asks why the criminal justice system has accepted DNA evidence in much the same way that our Anglo-Saxon predecessors accepted trial by ordeal. Why have we not instead shown the same caution we show polygraph evidence? To be sure, he does not present the issue in those terms, and might shudder at the analogy. Still, the central issue he pursues in the book is the question of how DNA evidence has managed to assume its current aura of infallibility, as evidence which is somehow uniquely objective and "true": how it has …

Why Restorative Justice Is Not Compulsory Compassion: Annalise Acorn's Labour Of Love Lost [A Review Of 'Compulsory Compassion: A Critique Of Restorative Justice,' Annalise E. Acorn (Vancouver: University Of British Columbia Press, 2004)], Bruce P. Archibald

Articles, Book Chapters, & Popular Press

Annalise Acorn has produced an immensely engaging book about love, sexuality and law, written with verve and elan; however, it paints a hugely misleading picture of restorative justice that could be seriously damaging to what is arguably the most significant development in criminal justice since the emergence of the nation state. Restorative justice is changing the nature of criminal justice systems the world over. The Canadian criminal justice system is a leader in this regard, though it is far from being alone. Simplistic and dysfunctional systems of punitive criminal justice are being altered and supplemented by restorative programs that are …

Justice And Fairness In The Protection Of Crime Victims, George P. Fletcher

Faculty Scholarship

In this Article, Professor Fletcher discusses the crucial distinction between justice and fairness-as well as its effect on the shifting "boundaries of victimhood "-from a comparative viewpoint by examining the approaches that various human rights instruments take to the problem of victims' rights. While the European Convention on Human Rights represents an evolving "middle ground" in the treatment of victims' rights (such recent cases as X. & Y. v. The Netherlands, A. v. United Kingdom, and M.C. v. Bulgaria are examined), only the Rome Statute of the International Criminal Court gives real priority to victims of crime with …

Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber

Publications

Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …

The Burdens Of Representing The Accused In An Age Of Harsh Punishment, Abbe Smith

Georgetown Law Faculty Publications and Other Works

The crimes are not any worse than they used to be. They run, as crimes do, from the banal to the barbarous. But punishment seems to have taken on a life of its own.

There are people serving more than twenty years for nonviolent drug offenses. There are people serving more than thirty years for car theft, burglary, and unarmed robbery--crimes for which a harsh sentence used to be ten years. One Oklahoma woman is serving a thirty-five year sentence for "till-tapping"--stealing money out of cash registers--when she was in the throes of a heroin addiction. It is impossible to …

Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law School Faculty Publications

Jury sentencing in non-capital cases is one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states - Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window through which one can observe some of the most fundamental forces operating in criminal adjudication today. It turns out that jury sentencing in …